9911796707
TMI Blog1994 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... statement showing the quantity of inputs used in the manufacture of every unit of Sheet glass. The lower Appellate Authority allowed the appeal of the respondents, holding that the finding of the Adjudicating Authority that Notification No. 178/77 did not permit accumulation of the amount to be set off is erroneous. The Collector (Appeals) held as follows - If the substance of the notification i.e. inputs having paid duty under Item 68 have been utilised in the excisable goods manufactured and cleared from the factory, is satisfied, the assessee would be entitled to the benefit of the said notification. Since there is no dispute about it in the instant case and the appellant having claimed the benefit of the notification as early as July, 1977 and then purused it with all diligence with the department, the question of the claim being time-barred, therefore, not arising, the appellant should be given the consequential refund, quantum of refund being subject to check and verification of the records by the adjudicating authority. Hence the present appeal by the Revenue. 2. The appeal was originally heard by a Bench consisting of Hon ble Member (Judicial) Shri G.P. Agarwal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a majority view. The Third Member s view is reproduced below - I have considered the submissions made before me at the outset by the learned SDR for the Department and by the learned Counsel for the respondent. Hon ble Member (J) has taken the view that by reason of a conflict between the two rulings of the Tribunal namely Andhra Pradesh Lightings case reported in 1988 (33) E.L.T. 627 and M/s. Grindwell Norton Ltd. v. Collector of Central Excise reported in 1989 (43) E.L.T. 472, the conflict has to be resolved by a Larger Bench. Member (T) has taken the view that there is no conflict at all in the views taken by the Tribunal in the said two rulings and has further reiterated that the same Members have considered the same question in ITC case and has taken a view in favour of the assessee as evidenced by the Order No. E/457-461/91-D, dated 2-12-1991. But unfortunately the conclusion of Member(T) is not consistent with the ratio, which he has referred to in paragraph 10 of this order and this would appear to be an error. Be that as it may, sitting as a third Member to resolve a conflict in the views between the two Members and exercising jurisdiction under Section 35D(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence of opinion. 7. Shri M.K. Jain, learned DR opposing the contention, submits that this Bench is competent to hear the appeal and has indeed been constituted to resolve the difference of opinion by a majority view. 8. We are in agreement with the submission of the learned SDR - this larger Bench is sitting to resolve the conflict and is empowered to hear the appeal. If the learned Counsel s contention is to be accepted, then it would lead to the absurdity that this Bench, if it decides that a larger Bench is required to resolve the conflict, can only return the matter once again to the President for constituting a Larger Bench all over again and this would only lead to a judicial stalemate and needless repetition of the exercise of reference to a Larger Bench. Accordingly, we overrule the objection and proceed to dispose of the appeal. 9. The issue for determination is the eligibility of the respondents to the benefit of set off of duty paid on Sodium Sulphate used in the manufacture of glass sheet in terms of Notification No. 178/77 as amended by Notification No. 295/77. For a proper appreciation of the dispute, the notifications are reproduced below - In exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Percentage 1. Silica Sand 549.0 58 2. Soda Ash 161.0 17 3. Sodium Sulphate 37.5 04 4. Lime Stone 43.0 05 5. Dolomite 138.0 14 6. Felspar Powder 18.0 02 946.5 100 The above composition keeps on varying depending upon the quality of the raw materials and tank condition. However, the above ratio can be taken as a standard percentage of raw material mix in our factory for the manufacture of sheet glass. We hope the above information will meet with your requirements in granting permission under Notification No. 178/77 -C.E., dated 18-6-1977". 11. Subsequently, on 19-1-1978, the respondents submitted particulars of excisable goods manufactured during the accounting period 1976-77 and particulars of raw materials used in the manufacture of excisable goods and its proportion to the total quantity of inputs is as follows - 12. The respondents were called upon to submit a revised classification list which was furnished on 15th March, 1978. In August, 1978, the department once again called for a revised classification list showing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty leviable thereon as is equivalent to the duty of excise already paid on the inputs . A question has arisen as to how this exemption should be availed of by the manufacturers. The Board has considered the matter and it has been decided that the quantum of duty paid on the inputs falling under Tariff Item 68, would require to be determined on the basis of quantity of inputs going into the manufacture of a particular unit of an excisable commodity liable to payment of duty. Thus there has to be a calculation in respect of each product, determining the quantity of inputs having paid duty under Item 68, which have gone into the production of one unit of finished goods. This determination has to be carried out once for all in respect of each excisable product liable to the benefit of Notification No. 178/77, dated 18-6-1977 manufactured by each factory. After having determined the quantity of various inputs duty paid on those inputs under Tariff Item 68 can be calculated with reference to the value shown in the invoices/delivery challans on which the input was received. In this way, the total amount of duty required to be set-off from the final duty payable on the finis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earn the right of availing the set off prior to that date, however, the department extended the benefit and granted refund w.e.f. a prior date namely 17-5-1979, which is the date on which the appellants were granted written permission by the Superintendents to avail of set off. 15. In the case of Grindwell Norton (supra), the Tribunal allowing crediting of duty paid on inputs received in the appellants factory from 11-7-1977 and utilised in the manufacture of grinding wheels in the RG-23A account and granted permission to utilise the same for payment of duty on future clearance of grinding wheels although the statement of input/output ratio was furnished only on 30-5-1979 reasoning as follows - We have carefully considered the pleas advanced by both the sides and have also considered the findings of the lower appellate authority. We are inclined to agree with the pleas of the learned Consultant for the appellant firm that statement of input-output ratio could not be submitted by them due to practical difficulties which had ultimately to be sorted out on the basis of discussion of the departmental officers only on 30-5-1979 approval of which was given on 30-7-1979. Once this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95/77 which had been fulfilled and therefore, upheld the order of the lower Appellate authority and rejected the appeals filed by the Revenue. Thus, it is seen that preponderant view is that the benefit of notification cannot be denied on the ground that it was not claimed at the time of clearance of goods provided the conditions set out therein are fulfilled by the claimants. 18. The judgment of the Hon ble Supreme Court in the case of Indian Aluminium Co. v. Thane Municipal Corporation [1991 (55) E.L.T. 454] is distinguishable from the facts of the present appeal - in the case before the Supreme court, the appellants did not file the declaration in Form 14 as required under the Maharashtra Municipality (Octroi) Rules, 1968 in respect of imported raw material to be used in the manufacture of the final product, to the effect that the imported goods shall not be used for any other purpose for sale or otherwise. The Supreme Court observed that an incentive was sought to be given to such entrepreneurs by such concession and that being the object, the verification at the relevant time by the Octroi authorities becomes very much necessary before a concession can be given. 19. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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